Operational Guideline – Registered Providers
of Supports
Legislation
1.
Read ss.3, 4, 9, 33(6), 69 to 73, 99(g) and (h) of the National Disability Insurance Scheme Act 2013
(NDIS Act) and National Disability Insurance Scheme (Registered Providers of Supports) Rules
2013 (Registered Providers of Supports Rules).
General principles
2.
People with disability should be supported to exercise choice, including in relation to taking
reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
See s.4(4) of the NDIS Act.
3.
People with disability have the same right as other members of Australian society to be able to
determine their own best interests, including the right to exercise choice and control, and to engage
as equal partners in decisions that will affect their lives, to the full extent of their capacity.
See s.4(8) of the NDIS Act.
4.
Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the
provision of supports to people with disability are to be promoted.
See s.4(15) of the NDIS Act.
Overview
5.
Providers play a vital part in delivering supports to participants. The competence and integrity of
providers is essential to the success of supporting participants to achieve their aspirations, goals
and objectives.
6.
Over time the National Disability Insurance Scheme (NDIS) will change the dominant disability
support services funding model from a block-funded, grant-based system to a demand-driven,
market-based approach. This will help participants to exercise choice about the selection of their
providers by placing participants at the centre of the provision of supports. Participants will be
supported to be active consumers of supports rather than passive beneficiaries.
7.
The NDIS Act allows a person or entity (applicant) to apply to be a registered provider of supports
(registered provider). An applicant can seek to become a registered provider to:
a.
Manage the funding for supports under plans (manage funding), and/or
b.
Provide supports.
See ss.9 and 69(1) of the NDIS Act.
8.
Participants are able to exercise choice and control about the selection of their providers. Unless a
participant’s plan is managed by the National Disability Insurance Agency (NDIA), there is no
restriction under the NDIS on who may provide supports under the participant’s plan. This includes
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the possibility that a participant may choose a provider who is not a registered provider to provide
the supports under their plan.
9.
It is only when funding for a participant’s supports is managed by the NDIA that the supports must
be provided by a registered provider. However, a participant may ask the NDIA to register an
applicant to be a registered provider in respect of that participant only (see paragraph 23 below).
See s. 33(6) of the NDIS Act.
10. Where a participant’s funding is managed by the NDIA, the participant selects independently or with
assistance, from the registered providers who will provide their supports.
11. This Operational Guideline deals with:
a.
Making decisions on applications to be a registered provider, and
b.
Making decisions on revoking a registered provider’s registration.
Two steps to becoming a registered provider
12. There are two steps for a provider to be registered:
a.
First, the person or entity who wishes to be registered makes a valid application to the NDIA,
and
b.
Second, a delegate makes a decision on the application. The delegate must be satisfied that
the application meets the criteria set out in the NDIS Act and Registered Providers of
Supports Rules.
See ss.69 and 70 of the NDIS Act.
Making an application
13. Receipt of an application by the NDIA begins the process of making a decision about whether the
applicant meets the requirements to become a registered provider.
14. Once an application is received the NDIA must:
a.
Check whether the application is a valid application (see paragraph 17 below). That is, the
application must be in the form approved by the CEO and include any information and be
accompanied by any documents required by the CEO (see below), and
b.
If the application is a valid application – make a decision on the application.
See ss.69 and 70 of the NDIS Act.
15. If the application is not a valid application – the NDIA will take reasonable steps to contact the
applicant to inform them that their application cannot proceed because it does not meet the
requirements in the NDIS Act and provide the applicant with an opportunity to submit a valid
application.
16. At this stage of the application process, the NDIA cannot use the power in s.55(i) of the NDIS Act to
require a person other than a participant or prospective participant to provide information and
documents about whether the applicant for approval as a registered provider meets the criteria for
approval. This power can be used when assessing an application and that only arises once a valid
application has been received.
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Determining whether the application is a valid
application
17. To be a valid application the information and documents received by the NDIA must substantially
comply with the requirement in s.69(2) of the NDIS Act. Under s.69(2) of the NDIS Act the
information and documents to be received are:
a.
A written application in the approved application form, and
b.
Any information and documents required by the NDIA.
18. The type of information and documents required by the NDIA includes evidence of how the
applicant meets the criteria to be a registered provider (including suitability criteria). See
paragraphs 22 to 24 below.
See ss.69(2) and 197of the NDIS Act.
The application may be for specific supports or
clusters of supports
19. An application may seek approval for a person or entity to be a registered provider to provide
specific supports set out in the application or for kinds or clusters of supports set out in the
application.
20. A cluster of supports is a broad kind or category of supports and may contain a number of more
specific support items.
21. A delegate must be satisfied that the applicant meets the criteria set out in the Registered Providers
of Supports Rules in relation to each specific support or each cluster of supports (as the case may
be).
Making a decision on an application
22. The NDIS Act sets out that a delegate must approve an applicant as a registered provider if:
a.
The delegate is satisfied that the applicant meets the criteria to be a registered provider
(set out in the Registered Providers of Supports Rules), and
b.
The delegate is satisfied that the applicant is suitable to provide supports or manage
funding (as the case may be) applying the criteria and having regard to the matters set out in
the Registered Providers of Supports Rules.
See s.70(1) of the NDIS Act.
23. Although a delegate must approve an application that meets the criteria in the Registered Providers
of Supports Rules, delegates do have flexibility to approve only some supports or the provision of
supports to only some people. If a delegate approves an application, the approval may (but does
not have to) specify that the person or entity is a registered provider in respect of a specified class
of supports or specified class of person. This discretion allows a delegate to define the scope of the
supports a registered provider can provide or the persons to whom a registered provider can
provide supports.
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The criteria to be a registered provider
24. The criteria to be a registered provider are set out in rs.3.7 to 3.11 of the Registered Providers of
Supports Rules.
See s. 70(1)(d) of the NDIS Act and rs.3.7 to 3.11 of the Registered Providers of Supports Rules.
The criteria and matters to be suitable to be a
registered provider
25. In addition to being satisfied that the applicant meets the criteria above a delegate must also be
satisfied that the applicant is suitable to provide supports or manage funding (as the case may be)
by applying the criteria and having regard to the matters set out in the Registered Providers of
Supports Rules.
26. The suitability criteria and matters are set out in rs.3.12 to 3.14 of the Registered Providers of
Supports Rules.
See s. 70(1)(e) of the NDIS Act and rs.3.12 to 3.14 of the Registered Providers of Supports Rules.
Applications to be a registered provider that both
provides supports and manages funding – managing
conflicts of interest
27. A person can apply to be a registered provider to provide supports and manage funding.
28. Where a registered provider performs both of these roles for the same participant, a conflict of
interest may arise. To mitigate this risk, the Registered Providers of Supports Rules impose an
additional requirement on such applicants.
29. If an applicant seeks approval in relation to both the provision of supports and managing the
funding for supports under plans, the applicant is to have mechanisms in place for dealing with
conflicts of interest when performing both of those roles in relation to the same participant. The
NDIA may ask the applicant to evidence these.
See ss. 70(1) & 73(1)(d) of the NDIS Act and r.3.15 of the Registered Providers of Supports Rules.
A decision to refuse to approve an application
30. If a delegate is not satisfied, as required, under ss.70(1)(d) and (e) of the NDIS Act in relation to an
application, the delegate must refuse to approve the application.
31. A decision under s.70 of the NDIS Act not to approve an application is a reviewable decision.
Accordingly, the delegate must provide the applicant with written notice of the decision which
includes a statement that:
a.
The person or entity may request internal merits review of the decision, and
b.
Following an internal merits review decision, the person or entity may request further external
merits review in the Administrative Appeals Tribunal.
See ss.99(g) and 100 of the NDIS Act.
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32. Further information on the review process can be found in Operational Guideline – Review of
Decisions – Overview.
33. Further information on making decisions that adversely affect a person, including providing
statements of reasons, can be found in Operational Guideline – Review of Decisions – Overview
and Operational Guideline – Review of Decisions – Making Better Decisions.
When a person or entity ceases to be a registered
provider
34. There are two ways a person or entity ceases to be a registered provider:
a.
The registered provider’s instrument of registration expires on the date specified in the
instrument (if any date is specified), or
b.
The registered provider’s instrument of registration is revoked in accordance with the NDIS
Act and Registered Providers of Supports Rules.
See s.71 of the NDIS Act.
Specified end date
35. A registered provider’s instrument of registration expires on the date specified (if any) in the
instrument of registration unless the instrument has been earlier revoked in accordance with the
NDIS Act and Registered Providers of Supports Rules.
See s.71(a) of the NDIS Act.
36. If no end date is specified, a registered provider’s registration continues indefinitely (unless
revoked).
Revocation
37. The NDIA will seek to consider options to remedy concerns with a registered provider before the
situation requires consideration of the revocation of the provider’s registration.
38. A delegate may revoke a registered provider’s registration if the delegate is satisfied of one of the
following three grounds:
a.
The registered provider no longer meets the criteria set out in Part 3 of the Registered
Providers of Supports Rules for the purposes of s.70(1)(d) of the NDIS Act
b.
The registered provider’s application contained information that was false or misleading in a
material particular, or
c.
A circumstance exists that:
i.
Is a circumstance set out in r.5.2 of the Registered Providers of Supports Rules, and
ii.
Presents an unreasonable risk to one or more participants.
See s.72(1) of the NDIS Act.
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The registered provider no longer meets the criteria
set out in the Registered Providers of Supports Rules
for the purposes of s.70(1)(d) of the NDIS Act
39. If an applicant is approved to become a registered provider, they must continue to meet the criteria
set out in Part III of the Registered Providers of Supports Rules for the purposes of s.70(1)(d) of the
NDIS Act. Failure to do so can be grounds for revoking registration.
See s.72(1)(a) of the NDIS Act.
The registered provider’s application contained
information that was false or misleading in a material
particular
40. If a registered provider’s application for approval to be a registered provider contained information
that was false or misleading in a material particular, a delegate may consider revoking the
provider’s registration. This is largely a question of fact.
See s.72(1)(b) of the NDIS Act.
41. A delegate should be satisfied of the existence of this ground based on sufficient evidence and
findings of fact before considering a revocation on this ground.
A circumstance in r.5.2 of the Registered Providers of
Supports Rules exists and it presents an
unreasonable risk
42. If a circumstance set out in r.5.2 of the Registered Providers of Supports Rules exists and it
presents an unreasonable risk to a participant or a class of participants, a delegate may
considering revoking a provider’s registration.
See s.72(1)(c) of the NDIS Act.
43. R.5.2 of the Registered Providers of Supports Rules sets out the circumstances.
See r.5.2 of the Registered Providers of Supports Rules.
44. An ‘unreasonable risk’ is something to be determined on a case-by-case basis. Some factors which
may be relevant are whether a participant (or class of participants) may suffer material harm as a
result of the circumstance and/or the vulnerability of the participant (or class of participants) to harm
that results from the circumstance.
Revocation procedure
45. Before deciding to revoke a registered provider’s registration, a delegate must give written notice
to the relevant person or entity that revocation is being considered, which:
a.
Includes the delegate’s reasons for considering the revocation
b.
Invites the person or entity to make written submissions to the CEO within 28 days after
receiving the notice (submission period), and
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c.
Informs the person or entity that if no written submissions are made within the submission
period, any revocation may take effect as early as 7 days after the end of the submission
period.
See s.72(2) of the NDIS Act.
46. In deciding whether to revoke registration, the delegate must consider any submissions provided to
the delegate within the submission period.
See s.72(3) of the NDIS Act.
47. If a delegate decides to revoke registration, the delegate must give written notice of the decision to
the person or entity within 28 days after the end of the submission period. If notice is not given
within this period, the delegate is deemed to have decided not to revoke the registration.
See s.72(4) and (5) of the NDIS Act.
48. A decision under s.72 of the NDIS Act to revoke registration is a reviewable decision under the
NDIS Act and the written notice must include a statement that:
a.
The person or entity may request internal merits review of the decision, and
b.
Following an internal merits review decision, the person or entity may request further external
merits review in the Administrative Appeals Tribunal.
See ss.99(h) and 100 of the NDIS Act.
49. Further information on the review process can be found in Operational Guideline – Review of
Decisions – Overview.
50. Further information on making decisions that adversely impact a person, including providing
statements of reasons, can be found in Operational Guideline – Review of Decisions – Overview
and Operational Guideline – Review of Decisions – Making Better Decisions.
51. To minimise the risk of disruption to participants, the NDIA may liaise with a provider whose
registration is to be, or has been, revoked to determine steps to allow for a smooth transition and
the continuity of supports for affected participants.
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